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High Level Summary

An appeal against the decision of a Fitness to Practise Committee of the General Pharmaceutical Council, to remove the Registrant from the statutory register for pharmacists.

The Registrant argued that removal was too severe a sanction; following her police caution for Fraud by False Representation and that the Committee had been wrong and unreasonable in its approach to assessing insight. It was further argued that the Committee’s legally qualified Chair should have floated the content of any legal advice he intended to give the lay members and heard representations from all parties on that advice, before giving such advice in private. The appeal was dismissed.

Facts

The appellant Registrant, Ms Burrows, was a pharmacist. She had accepted a caution for Fraud by False Representation from police after admitting that, on two separate occasions in 2013, she had returned two dresses to a shop and received a refund. She had in fact switched the labels in the dresses, so the dresses she returned were different dresses and less valuable. The total value of the fraud was said to be £75. As Ms Burrows was of previous good character, and the value was under £100, a decision was made to caution Ms Burrows rather than to prosecute her.

The General Pharmaceutical Council’s (GPhC) Rules require that registrants notify the GPhC of any cautions received within 7 days of receipt. Ms Burrows failed to declare her caution to the GPhC; however they received notification from the police. The GPhC pursued charges against Ms Burrows for the caution and her failure to declare it. The GPhC further alleged that her fitness to practise was impaired by reason of her misconduct.

At a hearing on 21 July 2015, Ms Burrows did not attend but was represented. A copy of a police national computer printout had been obtained as proof of the caution, and relied upon by the GPhC. However, Ms Burrows’s counsel did not accept the print out as proof that a caution was given.

An adjournment was sought and granted by the GPhC for further enquiries to be made, and the hearing was re-scheduled for 16-17 September 2015. Prior to the re-scheduled hearing, a redacted custody record was served which stated that the caution was given. It appears that although the offence was initially denied when questioned by police, Ms Burrows had then later admitted the offence and accepted the caution. It was conceded by the Defence, ahead of the reconvened hearing, that a caution had been given and no witnesses were therefore required to attend.

Ms Burrows was not present at the hearing on 16 September as she was on holiday. No application for an adjournment had been made by the Defence to secure her attendance. At the reconvened hearing the Defence argued that Ms Burrows’s fitness to practise was not impaired, as she had not intended to make any financial gain for herself or cause loss to others. It was argued that the acceptance of the caution was therefore flawed, as she had lacked the mens rea to have committed the offence. Ms Burrows could not be cross-examined as she was not present.

The Committee determined that Ms Burrows had accepted the caution in order to avoid prosecution. They found that her actions amounted to misconduct and that her fitness to practise was impaired. The Committee concluded that her conduct was dishonest and that her integrity could no longer be relied upon. She had breached fundamental standards of conduct and brought the profession into disrepute,

The Committee subsequently determined that it was necessary to remove her from the register.

Ms Burrows appealed against the decision and sought an order quashing the sanction imposed, asking the Court to substitute a lesser sanction, or to remit the case back to the Fitness to Practise Committee.

It was argued on appeal that:

the Committee had been wrong and unreasonable in its approach to, and assessment of, insight, and in particular should have treated her as having been genuinely unsure of the status of the warning she had been given, and whether it had to be reported;

The sanction had been too severe; and

The Committee’s legally qualified chairman should have floated with the parties the proposed content of any advice on the law he proposed to give to the lay members and heard representations on the correctness of the advice before having given it in private.

On the first ground of appeal, that the Committee had been wrong and unreasonable in its approach to insight, the appellant argued that insufficient credit had been given for her co-operation with police, her apology and admissions. It was argued that uncertainty regarding the caution imposed was a legal argument and should not be equated with a lack of insight.

Mr Justice Kerr rejected this ground of appeal. He noted the difficulty the appellant had placed herself in was that her challenge to the caution was not accompanied by an expression of remorse about the underlying fraudulent act of switching the labels on the dresses, which was serious dishonesty irrespective of whether a caution had been valid. The appellant did not at any stage appear to acknowledge that the switching of the labels was serious misconduct. He noted that Ms Burrows had not attended the hearing, was on a pre-booked holiday, and had not requested the hearing be re-scheduled or offered any other reason for her non-attendance. The Committee had not had the opportunity to question her in order to assess her level of contrition and insight.

Mr Justice Kerr highlighted the importance of allowing a committee an opportunity to question a registrant in order to assess insight. He stated (at paragraph 58) that,

He further commented that regulatory bodies should forewarn registrants that non-attendance may be severely prejudicial to their case, should the hearing proceed in their absence.

On the second ground of appeal, namely the order for removal being too severe a sanction, Mr Justice Kerr acknowledged that the sanction was severe, but that it was a matter for the Committee’s judgment. The fact removal was not inevitable did not necessarily mean it was too harsh. Cases of dishonesty were always liable to lead to removal. The Committee had carefully considered the aggravating and mitigating factors in this case, and the weight placed on aggravating factors was not so great that the decision could be regarded as wrong.

On the third ground - procedural fairness, Mr Justice Kerr found there was no merit in this argument. The issue on which it was submitted that provisional advice should have been disclosed and discussed was the Chairman’s statement that Ms Burrows “cannot say that she did not intend to have that financial benefit unless there are circumstances which would act so as to vitiate her capacity to form the necessary intent.” Mr Justice Kerr was satisfied that the Chairman had not made a ruling on a point of law, but was merely expressing the view of the Committee that her acceptance of having committed the two offences should be taken at face value because there was no reason (e.g. incapacity, duress, undue influence or some other factor vitiating consent) not to. There was nothing procedurally unfair about the process leading to that part of the Committee’s determination.

This case is significant in two respects. First, it confirms that section 40 of the Dentists Act 1984, which precludes unregistered persons (which encompasses suspended dentists) from receiving payment for dentistry carried out by other people...

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